01 September, 2016
Kent County Council v (1) M (2) K (2016) EWFC 28 Fam Div (Theis J) 13/05/2016
The High Court has found that a child's rights under articles 8 and 6 have been seriously interfered with by the actions of a local authority. In December 2011, the child known as "K" was placed in the care of the local authority pursuant to section 20 Children Act 1989 (CA 1989). She underwent seven successive foster placements, all of which broke down, often at short notice in distressing circumstances before the local authority eventually issued care proceedings in November 2015.
The Court was asked to determine, firstly whether a final care order should be made endorsing a care plan for K to remain in long term foster care and secondly, whether the local authority had breached her rights under ECHR article 6 and article 8, i.e. her right to a fair trial and her right to private and family life.
Ultimately, the Judge concluded that the local authority had acted unlawfully and acted in a manner incompatible with her article 8 and 6 rights. An award of £17500 was made in respect of damages.
The Court held that the local authority had:
The Judge considered the duty under section 20 CA 1989 and found that whilst there is no time limit on providing s.20 accommodation, each case had to be considered on its own facts. In this matter, Mrs Justice Theis commented that the delays by the local authority in taking the necessary steps had a negative effect on K's emotional health and development and that care proceedings would have helped to provide the stability and security that she is required.
Although these types of cases do appear to be becoming more frequent, and the use of s20 Children Act 1989 has been the subject of much criticism, it should be remembered that the issue of causation is still relevant. In this case the judge found that the Claimant's emotional health had suffered a detriment, hence the significant award. However there are cases where, although a child may have been accommodated under s20 for far longer than is reasonable, that placement may have been stable and secure. As such the effect that the breach has had on the child is still a fundamental consideration with regards to settlement.
Social Care Departments should be aware that recent cases have clarified that the Court believes that any accommodation under s20 should be an interim option and for no more than 3 months without review. Policies should be in place for management reviews of these arrangements and cases moved to formal care orders wherever possible to avoid situations such as the above.
For more information please contact Kella Bowers by email or call 01254 662831.